FOIA requesters can be very difficult to deal with. Some may bombard public authorities with requests, to the point where they disrupt the authority’s ordinary work, perhaps with an obsessive focus on a particular issue. Some will use FOIA to try and re-open matters that have already been examined in detail; and it is impossible to achieve closure, because each item of information provided simply becomes a starting-point for more questions. How should public authorities cope with this kind of behaviour? The obvious recourse is to FOIA section 14(1), which enables a public authority to refuse to answer a request if it is vexatious.
The Information Commissioner has issued guidance on vexatious and repeated requests (last updated in December 2008), which identifies five questions:
- Can the request fairly be seen as obsessive?
- Is the request harassing the authority or causing distress to staff?
- Would complying with the request impose a significant burden?
- Is the request designed to cause disruption or annoyance?
- Does the request lack any serious purpose or value?
According to the Commissioner, a public authority should generally be able to make out a reasonably strong case under at least two of these headings, if it is to reject a request as vexatious.
Two recent Tribunal decisions consider whether requests were rightly treated as vexatious.
In Rigby v Information Commissioner and Blackpool, Flyde and Wyre Hospitals NHS Trust the requester’s underlying complaint was about his mother’s death in hospital. He complained to the Healthcare Commissioner about the treatment given, and they upheld the complaint and made a number of recommendations for action by the Trust. He then made a series of FOI requests about the implementation of those recommendations. The Trust eventually informed him that it would no longer correspond with him about his underlying complaint, and that it was invoking its “Vexatious Complaints Policy” (“the Policy”). The requester then made a FOIA request for information about the introduction and amendment of the Policy; this request was rejected as vexatious by the Trust. The Commissioner upheld the Trust’s position, and the requester appealed to the Tribunal.
The Tribunal set out some general principles at §§27-32. It considered that the Commissioner’s guidance, and the five considerations that it identified, were useful, although they should not lead to an overly structured approach.
The Tribunal referred to a number of the earlier cases, and set out the following principles:
• Section 14(1) is concerned with whether the request is vexatious in terms of the effect of the request on the public authority, and not whether the applicant is vexatious.
• In the absence of a definition of “vexatious” in FOIA, it must be assumed that Parliament intended the term to be given its ordinary meaning. By its ordinary meaning, the term refers to activity that “is likely to cause distress or irritation, literally to vex a person to whom it is directed”.
• The focus of the question is on the likely effect of the activity or behaviour. Is the request likely to vex?
• For the request to be vexatious, there must be no proper or justified cause for it.
• It is not only the request itself that must be examined, but also its context and history. A request which when taken in isolation, is quite benign, may show its vexatious quality only when viewed in context. That context may include other requests made by the applicant to that public authority (whether complied with or refused), the number and subject matter of the requests, as well as the history of other dealings between the applicant and the public authority. The effect a request will have may be determined as much, or indeed more, by that context as by the request itself. This is in marked contrast to other types of FOIA appeals where the Tribunal is said to be strictly applicant and motive blind.
• The standard for establishing that a request is vexatious should not be set too high. Equally, however, it should not be set too low. The judgment that section 14(1) calls for is balancing the need to protect public authorities from genuinely vexatious requests on the one hand, without unfairly constraining the legitimate rights of individuals to access information.
The Tribunal then gave a series of examples of considerations that had been held relevant in the decided cases, as follows:
• where the request forms part of an extended campaign to expose alleged improper or illegal behaviour in the context of evidence tending to indicate that the campaign is not well founded or has no reasonable prospect of success;
• where the request involves information which has already been provided to the applicant;
• where the nature and extent of the applicant’s correspondence with the authority suggests an obsessive approach to disclosure;
• where the tone adopted in correspondence by the applicant is tendentious and/or haranguing and demonstrates that the applicant’s purpose is to argue and not really to obtain information;
• where the correspondence could reasonably be expected to have a negative effect on the health and well-being of the employees of the public authority;
• where the request, viewed as a whole, appears to be intended simply to reopen issues which have been disputed several times before, and is, in effect, the pursuit of a complaint by alternative means;
• where responding to the request would likely entail substantial and disproportionate financial and administrative burdens for the public authority;
• where the same requests have been made repeatedly, or where on repetition, the particulars of the requests have been varied making it difficult to know exactly what the requester is seeking and making it less likely that the request can be satisfied; and
• where providing the information requested previously has tended to trigger further requests and correspondence, making it unlikely that a response ending the exchange of correspondence could realistically be provided.
The Tribunal agreed that this particular request was vexatious. On its face it was straightforward; but viewed in context it was part of a continuing campaign relating to the Trust’s treatment of the requester’s mother, and that campaign had become obsessive. Any response would have been likely to trigger further requests. There had been numerous previous requests: according to the Commissioner, the Trust had fielded 56 separate requests from the Appellant on 16 different dates, though the requester disputed these figures. The Tribunal accepted that, whatever the requester’s intentions, the effect of his requests had been to vex, that is, to cause distress or irritation, given the language of the requests and the repeated allegations of bad faith against Trust employees.
In Young v Information Commissioner the requester was an individual who had been prosecuted and convicted. He subsequently made a number of complaints about his arrest and detention, which were considered by the Independent Police Authority. A FOIA request to the relevant police force was rejected as vexatious, and the Commissioner upheld the authority’s handling of the request. On appeal, the Tribunal approved the approach taken in Rigby at §§27-32. It considered that the request was obsessive, might in some respects involve harassment of the authority’s staff, and lacked serious purpose or value. On balance (though narrowly) the Tribunal accepted that the request was vexatious. However, the Tribunal emphasised that it was not suggesting that the requester was himself vexatious, and did not doubt that he sincerely believed himself to have been badly wronged.
The last point is important. Section 14(1) is about vexatious requests, not vexatious people. There is no power to treat someone as a vexatious requester (i.e. as a person who is no longer entitled to make FOIA requests to the authority). Each individual request must be considered on its merits. And of course the decision to treat a request as vexatious may lead to a complaint to the Commissioner, and then an appeal to the Tribunal. Hence, if a request is easy to answer, it may well be less time-consuming to respond to it rather than to treat it as vexatious – even where the latter course would be justifiable.